Docket Number: FD-130128-RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X S.J.R. No. 5125
IN THE MATTER OF THE ADMINISTRATIVE : ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO. FD 130128-RO
:
WOODHAVEN 98 REALTY CORP., DRO DOCKET NO. AD 130130-OM
PETITIONER :
------------------------------------X
ORDER AND OPINION GRANTING ADMINISTRATIVE APPEAL, IN PART,
AND REMANDING PROCEEDING TO ADMINISTRATOR FOR FURTHER PROCESSING
On March 30, 1988, the above-named petitioner-owner filed an
Administrative Appeal against an order issued on February 29, 1988
by the District Rent Administrator, 92-31 Union Hall Street,
Jamaica, New York, concerning the housing accommodations known as
86-22 98th Street, Woodhaven, New York, Various Apartments.
On May 4, 1988, the Commissioner, under Docket No. CC 130213 RO,
issued an order and opinion rejecting the owner's administrative
appeal for a procedural defect, but without prejudice to the owner
timely refiling a corrected appeal.
On April 26, 1990, the owner refiled its administrative appeal.
Said refiled appeal was assigned Docket No. ED 130191-RO.
On May 25, 1990, the Commissioner issued an order and opinion
dismissing the owner's administrative appeal based upon the owner's
failure to refile its appeal within the specified time limitations
for refiling.
Subsequent thereto, the owner filed a petition in the Supreme Court
pursuant to Article 78 of the Civil Practice Law and Rules
requesting that the order of the Commissioner be annulled.
On January 10, 1991, a judgment was signed by Justice Joan Marie
Durante vacating the Commissioner's order and opinion of May 25,
1990, and directing the Division to determine a proper
administrative appeal against the February 29, 1988 order of the
District Rent Administrator which is filed by the owner within a
specified time after service of a copy of the judgment with notice
of entry.
On February 13, 1991, the owner filed an administrative appeal in
accordance with the Court judgment. Said administrative appeal was
assigned Docket No. FB 130211 RO.
On March 21, 1991, the Commissioner issued an order and opinion
rejecting the administrative appeal for a procedural defect, without
prejudice to the owner timely refiling a corrected appeal.
Docket Number: FD-130128-RO
On April 3, 1991, the owner timely refiled a corrected and proper
administrative appeal against the February 29, 1988 order of the
District Rent Administrator.
The administrative appeal is being determined pursuant to the
provisions of 9 NYCRR 2202.4 and 9 NYCRR 2522.4.
The issue herein is whether the District Rent Administrator properly
determined the owner's application for a rent increase based upon a
claimed major capital improvement (MCI).
A review of the record indicates that on April 18, 1986, the owner
filed an application for a rent increase based upon the installation
of new windows, building-wide, at a total claimed cost of
$19,096.00, $17,096.00 of which was substantiated by the submission
of cancelled checks.
On May 16, 1986, the Division mailed a notice to the owner, advising
it of the docket number assigned to the application, together with a
package of material including copies of the Notice to Tenants (Form
RA-79N) and the Certification of Service to Tenants (Form RA-79,
Supplement IV). The owner was advised that it had sixty days from
the mailing date to serve the RA-79N form on all affected tenants
and to certify to the Division that it had done so. The owner was
further advised that failure to submit the Certification within
said sixty-day period would result in the dismissal of the
application, without prejudice to the owner's right to refile.
On October 23, 1986, the Division mailed a notice to the owner which
requested that the owner submit, among other things, the RA-79-
Supplement IV Certification and an Affidavit of Registration (both
forms enclosed with said notice).
On September 22, 1987, the Division mailed another notice to the
owner again requesting, among other things, the RA79-Supplement IV
Certification (said form again enclosed with the notice).
On November 13, 1987, the Division mailed a final notice to the
owner stating that the Division had not received a response to the
notice of September 22, 1987 and again requesting that the owner
submit, among other things, the RA79-Supp IV Certification form.
The record does not contain a response from the owner and on
February 29, 1988, the District Rent Administrator issued the order
appealed herein.
The District Rent Administrator's order denied the owner's
application based upon findings that the owner failed to submit a
complete application, having omitted Form RA-79, Supplement IV
(Certification of Service of Notice to Tenants) and that the owner
failed to submit proof of registration, "after no entry for the
subject building was found in the Division's computer."
On appeal, the petitioner-owner enclosed a completed Form RA-79
Supp IV (Certification of Service of Notice To Tenants) dated
Docket Number: FD-130128-RO
March 21, 1988, stating that on March 21, 1988, the owner completed
service upon the affected tenants of all necessary forms in
connection with its application. The owner also submitted a copy of
the 1987 Annual Registration Summary for the subject building, dated
June 11, 1987.
The record contains responses from two tenants, both stating that
they did, in fact, receive new windows.
After careful consideration of the entire evidence of record the
Commissioner is of the opinion that the administrative appeal should
be granted, in part, and the proceeding remanded to the District
Rent Administrator for further processing as provided hereinbelow.
Firstly, a review of the Division's records and computer entries
indicates that the owner registered the subject premises in 1984 and
filed annual registration updates for 1986, 1987, 1988, 1989 and
1990. The reference in the District Rent Administrator's order,
that the owner failed to submit proof of registration which was
requested after no entry for the subject building was found on the
Division's computer, should therefore be deleted.
With regard to the remaining ground for the District Rent
Administrator's denial of the owner's application, that the owner
failed to submit Form RA-79, Supplement IV (Certification of Service
of Notice to Tenants), the owner submitted with its appeal against
the District Rent Administrator's order of February 29, 1988 a
completed certification dated March 21, 1988.
An owner's application for a rent increase based upon an MCI is not
deemed complete until said certification form is filed with the
Division. While the District Rent Administrator acted within the
scope of proper discretion and authority in denying the owner's
application after the owner's repeated failure to respond to the
Division's notices requesting said certification form, such denial
would normally be without prejudice to the owner's right to refile.
However, under the terms of the current code, the owner could not
file for work completed more than two years ago. In consideration
of the equities involved, the unusual circumstances of this
proceeding, the owner's prior submission of proof, and the tenants'
acknowledgment that the installation had been made, the Commissioner
is of the opinion that this proceeding should be remanded to the
District Rent Administrator for further consideration of all of the
evidence submitted by the owner in support of its application and,
if the owner is found eligible, establishment of the appropriate
rental adjustment. On remand, the District Rent Administrator
should also afford the owner an opportunity to submit evidence
establishing that it had filed annual registration updates for 1985.
The Commissioner notes that the owner's delay in submitting the
required certification form results in a later effective date of the
increase, if any, for rent-stabilized tenants. The effective date
for rent-controlled tenants is the first rent payment day following
issuance of the order on remand, as per the provisions of 9 NYCRR
2202.2.
THEREFORE, in accordance with the provisions of the Rent and
Eviction Regulations for New York City and the Rent Stabilization
Docket Number: FD-130128-RO
Law and Code, it is
ORDERED, that this administrative appeal be, and the same hereby is,
granted, in part, and the proceeding remanded to the District Rent
Administrator for further processing in accordance with this order
and opinion. The order and determination of the District Rent
Administrator remains in full force and effect until a new order is
issued on remand.
ISSUED:
ELLIOT SANDER
Deputy Commissioner
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